April 11, 2002

Ms. Melissa L. Barloco
Assistant County Attorney
County of Harris
1019 Congress, 15^th Floor
Houston, Texas 77002-1700

OR2002-1660

Dear Ms. Barloco:

You have asked whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 162954.

The Harris County Medical Examiner (the "county") received a request for information concerning J. Clifford Baxter, including:

1. The complete autopsy report, with all toxicology and other supplemental reports.

2. All videotapes (including audio) of before, during, and after the autopsy.

3. All audio tapes of before, during, and after the autopsy.

4. All photographs of all or part of Mr. Baxter, taken before, during, and after the autopsy.

5. All gunshot residue tests and results, done before, during, and after the autopsy.

6. All handwritten and rough notes taken before, during, and after the autopsy.

7. All x-rays taken before, during, and after the autopsy, together with all x-ray reports.

8. All notes or alleged "suicide notes" found on or about the body of Mr. Baxter.

The county states that it does not have any audiotapes or suicide notes. The county is willing to release the remaining requested information with the exception of the autopsy photographs and the Sugar Land Police Department's incident report. The county claims that the photographs are excepted from public disclosure under section 552.101 of the Government Code, and that the incident report is excepted under section 552.108 of the Government Code.

Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by other statutes. Section 11 of article 49.25 of the Code of Criminal Procedure provides as follows:

The medical examiner shall keep full and complete records properly indexed, giving the name if known of every person whose death is investigated, the place where the body was found, the date, the cause and manner of death, and shall issue a death certificate. . . . The records are subject to required public disclosure in accordance with Chapter 552, Government Code, except that a photograph or x-ray of a body taken during an autopsy is excepted from required public disclosure in accordance with Chapter 552, Government Code, but is subject to disclosure:

(1) under a subpoena or authority of other law; or

(2) if the photograph or x-ray is of the body of a person who died while in the custody of law enforcement.

Code Crim. Proc. art. 49.25, § 11. Pursuant to section 11, the autopsy photographs are confidential because subsections (1) and (2) are inapplicable here. Thus, the county must withhold the autopsy photographs.

Section 552.108 of the Government Code states that information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from required public disclosure "if release of the information would interfere with the detection, investigation, or prosecution of crime." Gov't Code § 552.108(a)(1). Section 552.108 may be invoked by the proper custodian of information relating to an investigation or prosecution of criminal conduct. Open Records Decision No. 474 at 4-5 (1987). Based on the county's statements, we understand the county to assert that the Sugar Land Police Department's incident report relates to a pending investigation being conducted by the Sugar Land Police Department. We agree that release of the information at this time would interfere with the ongoing investigation. Therefore, based on the county's representations, the county may withhold the incident report from disclosure under section 552.108.

This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408,411 (Tex. App.--Austin 1992, no writ).

Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss of the Texas Building and Procurement Commission at 512/475-2497.

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code § 552.325. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

Yen-Ha Le
Assistant Attorney General
Open Records Division

YHL/sdk

Ref: ID# 162954

Enc: Submitted documents

c: Mr. R. Robert Willmann, Jr.
P.O. Box 460167
San Antonio, Texas 78246
(w/o enclosures)

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